________________________People come together and form a society for the purpose of cooperating. When they do, they lower their defenses and form trust relationships to facilitate interaction and productivity. But this makes them vulnerable to predators that violate the trust in order to gain a disproportionate share of what the society produces. So there must be some deterrent against predatory behaviors or people will not lower their defenses enough to facilitate congregation and cooperation. The justice system is supposed to serve as that deterrent. But what happens when the justice system itself becomes infiltrated by predators? The answer is of course that the justice system becomes the vehicle for predation and no longer provides the trust necessary for people to assemble and collaborate. When this happens, wealthy productive people leave to join other societies while poorer productive people (the ones that can’t leave) simply stop working. This causes production to fall making society poorer while the levels of predation increase do to a reduction in legitimate opportunities which resulted when the first wave of productive people left taking their resources, knowledge and work ethic with them. So now, even more productive people leave or stop working. Eventually the society collapses when it can no longer sustain itself or compete with healthy societies.

In this case study we hear Judge John Pisansky declare that he is "The Finest Judge in the World". Then we hear him tell lawyer, Howard Duff, with regard to his divorce case, that the case itself has no importance and that his only concern is that Howard “make some money on this case”. Then we hear Judge Pisansky render a $210,000 verdict in Howard’s favor.

The attached trial audio demonstrates that the law itself is pliable and ambiguous enough to support any verdict a judge feels like rendering. As such, the only thing that really matters is the Judge's agenda. Therefore we must have judges with higher agendas than helping lawyers make money. If not, (generally speaking) our brightest people will continue to leave and the one’s that can’t leave will simply stop working.

At first thought it might seem that justice might be a good agenda for a justice to have. But unfortunately the concept of justice is highly subjective and is every bit as ambiguous as the law.

In this case Judge Pisansky actually views the plaintiff’s lawyer as the injured party and thinks that justice will be served by making sure that he makes some money. If this case shows anything, it shows that justice is an arbitrary concept with no universal standard of measurement. So to say that a judge seeks to serve justice is to say that he serves his own agenda and personal world view.

This view of justice is supported by the work of logician Kurt Godel who proved in his famous Inconsistency Theorem that any axiomatic system of logic (like the law) is either incomplete or self-contradictory. This is important because it shows with mathematical certainty that we can stop wasting our time trying to define justice in terms of law.

Just ask anyone involved in any war or any kind of conflict. Surely they will tell you that justice is on their side. Now ask anyone on the other side of the conflict and they will tell you the same. From this we know that justice is a highly subjective highly emotional construct capable of carrying any meaning we assign to it. We are all nevertheless irresistibly compelled to rally behind the justice banner when we see it. This is because evolution has wired our brains to do so. This makes perfect sense when you consider that creatures that hunt in packs generally live longer themselves and make life shorter for competing solitary creatures. The justice instinct is the mechanism, the emotional glue if you will, that allows human beings to form a cohesive pack.

Even if we remove predation from the equation we still have a big problem. Trials conducted under ideal conditions produce losers. And losers who believe they were treated unjustly (nearly all of them) will spend the rest of their lives telling people that there is no justice from the justice system. These are people who will never trust again. These are people who will teach others not to trust. And this makes all of us poorer because people who don't trust are people who don't collaborate, don't work, and don't save. These angry destructive losers have a much greater effect on society than the happy winners because trust is far easier to destroy than to build. The losers themselves aren't the problem. The problem is that there are losers. And whenever you administrate justice, you create losers.

So if not justice, what agenda can a judge administrate that will serve society and its individuals in every situation? And what universal standard can we use to measure the effectiveness of the judge’s verdicts? The relatively new science of game theory provides the answer. Game Theory is a branch of applied mathematics and economics that studies situations where players choose different actions in an attempt to maximize their returns. First developed as a tool for understanding economic behavior and then by the RAND Corporation to define nuclear strategies, game theory is now used in many diverse academic fields, ranging from biology and psychology to sociology, philosophy, business, military strategy and the law. Of particular interest in choosing an agenda for the courts that will serve all individuals and society as a whole is the Nash equilibrium. This is a concept from game theory, (named after John Forbes Nash, who proposed it). The Nash Equilibrium is a combined game strategy involving two or more players, where no player has anything to gain by changing only his or her own strategy unilaterally. In other words, if each player has chosen a strategy and no player can benefit by changing his or her strategy while the other players keep theirs unchanged, then the current set of strategy choices and the corresponding payoffs constitute a Nash Equilibrium. Nash showed for the first time in his dissertation, Non-cooperative Games (1950), that Nash equilibria must exist for all finite games with any number of players. This means that for any court battle there exists at least one strategy (set of responses) that the combatants will lock into. Further more, if there is only one Nash equilibrium and the combatants understand their incentives, options and payoff’s, you can predict what they will do. If there is more than one Nash equilibrium, then you can predict the odds of what the combatants will do. More specifically you can predict how likely they are to cooperate.

Here’s a well known courtroom scenario called Prisoner’s Dilemma that demonstrates how game theory can be used to predict (and control) cooperation. The mayor of Moneytown owns a construction company and has been endorsed by a union called The United Brotherhood of Prison Guards. Together they plan to make Moneytown safer for decent society so they put pressure on the prosecutor to fill up their small jail so that they can build a bigger one. Yes, this will provide more work for the prison guards, a lucrative contract for the mayor, and it will help to advance the prosecutor's career. But none of these people view themselves as self-serving. All involved believe according to their justice instinct, which is driven in no small part by personal agenda, that they are acting justly and in the best interests of their community.

In custody are two young black men that don’t know each other who were caught together during a drug raid on a dance club. Each was carrying a small bag of pot that guarantees they will each do a year in jail for possession. Well it turns out that the prosecutor understands game theory and sets up a deal that ensures the two will falsely accuse each other of larger crimes which increases the jail time each must serve and helps to keep the jail full. All he does is put them in different cells and tells them that they will get a year off their jail sentence if they will give sworn testimony that the other is a major drug trafficker, which caries a sentence of 4 years.

The table below maps out the amount of jail time each of our young prisoners will receive according to all their possible responses. The right numeral in each coordinate pair shows the amount of jail time endured by the prisoner whose responses are shown in the row along the top of the table. The left numeral in each coordinate pair shows the jail time endured by the prisoner who's responses are shown in the column that runs down the left side of the table.

_________Quiet Fink

Quiet____| 1, 1 | 4, 0 |

Fink_____| 0, 4 | 3, 3 |

The Nash equilibrium is seen in the finale row and column as the result of the strategies where both men accuse each other of being major drug traffickers and as such they receive 3 years each. That is, they each receive 4 years for conviction on the others testimony but get one year off for accusing the other of being a major drug trafficker. Naturally, it would seem that the best strategy would be for both men to remain quiet, as shown in the first row and column. This way each would receive only a year in jail for possession. But no matter what one man does, the other will always do better by falsely accusing his counterpart (This satisfies our previous definition of the Nash equilibrium). In other words, even if the first man refuses to bear false witness against the second, the second man knows he will still do better by falsely accusing the first, as in that case, he would not do any time in jail at all. That is, he gets one year in jail for getting caught with a bag of pot, but gets one year off for accusing the other of being a major drug trafficker. This amounts to a total of zero time in jail. This strategy is represented by the table above in the bottom left cell and again in the top right cell. Both men know that they are better off by falsely accusing the other, no matter what the other man does. So in the end, both will decide to falsely accuse each other. The reason our young men will turn against each other is that the two have no prior trust relationship and cannot form one through communication. Remember they are being held in separate cells. But what would our two young black men have done if they were counseled by a trusted civil rights leader and shown the following table of strategies? They would cooperate of course and refuse to give false testimony against each other.

So given an understanding of what litigants are trying to accomplish you can predict with a high degree of certainty whether they will cooperate with each other or not. And when given even a small amount of control over courtroom conditions, it is possible to either ensure that litigants will cooperate or ensure that they will not. Why is this important? Because, as I stated in the very first paragraph of this topic, all societies are formed with the intent that members will cooperate for the benefit of all, and the justice system exists to deter predatory (uncooperative) behavior. So while Godel has established that justice can not be measured and there for reliably agreed upon, we can measure cooperation and we can all agree when cooperation has been achieved because if all litigants do not agree that all are cooperating, then they are clearly not in cooperation with each other.

The point is that judges have a lot of control over the conditions that litigants work under. After all, judges administrate the trials and decide the cases. So with an understanding of what the litigants want, the available choices, and an understanding of game theory, it is possible to create conditions that will cause litigants to cooperate with each other. And isn’t that what everybody wants?

Well actually no, it’s not what every body wants. Lawyers only make serious money when people litigate (agree not to cooperate). And what did Judge Pisansky tell the plaintiff’s lawyer? That the case itself means nothing and that he only hoped the plaintiff’s lawyer was making some money on the case.

The fact is that once lawyers get involved in a divorce case, it plays out very much like the Prisoner’s Dilemma we just read about. That’s because all communication now goes through the lawyers who have no interest in getting the litigants to work together. In fact lawyers often ensure that the couple will not communicate by getting the woman to falsely accuse the man of domestic violence. Then in almost all cases a judge will grant a restraining order that guarantees the two will not communicate. So mathematically speaking, the divorcing litigants are in exactly the same situation as our two prisoners. As a result the two bear false witness against each other as instructed by their lawyers in an attempt to keep what they can. In the end however, the two are ruined as they blindly bash each other like piñatas. Mean while, their lawyers scamper around picking up the shattered pieces of their lives as if it were fallen candy.

Going forward, we can prevent couples from destroying what they produced together by mandating counseling prior divorce trials. Here divorcing couples will talk to a councilor and if possible to each other about their goals. Together they will map out which strategies lead to cooperation and best possible outcome according to their goals, and they will identify which set of choices lead to lawyers devouring everything they built together. From a game theory perspective, this is the mathematical equivalent of placing our two young black men in the same cell and giving them the same councilor.

When doctors are required to separate conjoined twins, justice is not a consideration. The only two questions are “What is the best possible way to divide one body such that maximum total benefit of it will be preserved for the two individuals that share it?” and “How can we help these two individuals adjust to their newly divided body.”

The goals of divorce must be the same. “How do we separate these people so as to preserve, for all, the maximum total benefit of what they share?” and “How can we help all involved adjust to their new lives without each other and without all the things that they once had?” But in New Jersey you can’t even get a divorce unless there is a complaint and someone is found at fault. Then the property and children are divided up based upon those findings. So asking divorcing couples to work together and speak the truth about one another under these conditions is like asking our two prisoners to stay quiet while knowing that know matter what the other one does, each will do much better by bearing false witness against the other.

Instead of forcing divorcing couples to play Prisoners Dilemma, why not consider asking them what game theory model they think will lead to the best possible resolution of their case. One model they might agree to use is from a sub discipline of Game Theory called Fair Division. The model is called Cake Cutting. The object of this game model is to have opponents divide a jointly owned cake so that each will agree that he or she has received his or her fair share of the cake. The solution is to ask one player divide the cake into two pieces with the understanding that the opposing player will select the best piece.

Of course this model could not work well in deciding child custody, but if divorcing couples selected the cake-cutting model to settle the property issues, then players would be less likely to use their children for clubbing opponents during property disputes.

The simple cake-cutting model does not anticipate problems such as maliciously dividing assets in such a way as to make them valueless but I am not trying to promote that simple model. All I am trying to say is that the typical divorce trial is mathematically equivalent the prisoner’s dilemma and that there must be a better model. Also I am saying that divorcing couples should be given mandatory counseling and a choice about which game theory model to use when dissolving their relationship.


So in closing I maintain that:

1. Justice can not be measured or even defined but cooperation can. And cooperation is the very thing people are hoping for when coming together to form a society. Therefore a better mandate for our courts is facilitating cooperation as opposed to finding fault.

2. In settling disputes, the courts should be mandated to work towards decisions that yield maximum total benefit for all litigants within the confines of the law as opposed to administrating the nebulous concept of justice.

3. Mapping the Nash equilibria of any court battle will expose for all to see, which strategies lead to best outcomes with cooperation and which lead to maximum loss with endless litigation. Therefore counseling should be mandated before going to trial.

See how we can get fair trials now:
www.justodians.org/ProjectCSPAN.htm

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